Usually, the defense lawyer works to keep evidence away from the jury because it may be prejudicial, irrelevant, hearsay, or not presented in the correct legal manner.  Of course, the defense lawyer is motivated primarily because the proposed evidence almost always hurts her client’s case!

A prosecutor must anticipate these efforts.  These are all difficult jobs for a prosecutor.  But the toughest job, in my estimation, is working with victims.

Keep in mind there are two types of victims: the innocent and the not so innocent.  What do I mean?  Here’s an example: two men are drunk and begin fighting over a woman.  (What a great idea!)  One of the men pulls out a gun and shoots the other.  Both men had guns and either one was capable of pulling out the weapon, but the first one to do so and shoot, became the defendant and the other, the victim.  Remember, either one could have acted first and the defendant/victim identification would’ve been reversed.  This is an example of a not so innocent victim.

For prosecutors, these kinds of victims are difficult to work with because the victim and the new  defendant could be similar in character but for the fact the “defendant” got the gun out first.  In my experience, it’s difficult to work with these victims but not the hardest.

The hardest are what I call the ” innocent victims,” those  who never got involved but became victims.  Typical cases include child sexual victims, innocent women walking home who are accosted, and people standing in line at a convenience store who become victims of robbers.  These are the kind of people I mean when I say, “innocent victims.”

I think working with these people is the hardest part of a prosecutor’s job because when they come to you, they want the defendant not only convicted but also hung by his neck, tortured, and then, finally, sent to prison for the rest of his life.  Although I often agreed with their sentiments, I had to tell them that first, I couldn’t guarantee the jury would find them guilty.  Even if they did, the sentencing guidelines in most states don’t require the death penalty.  In fact, there’s a good chance they may get probation.

To have to tell an innocent victim that even if we get a conviction, there isn’t much the defendant will suffer by way of prison is so hard.  People have an idea that all bad criminals go to jail and the public is safe.  Far from reality.

Prosecuting cases with innocent victims isn’t harder for legal reasons.  It’s harder because of the personal, emotional reasons.

The post This is the Hardest Part About Being a Prosecutor appeared first on Colin T. Nelson.

— One of the purposes of setting bail is to ensure public safety.  If the defendant is charged with being a serial rapist or serial killer, chances are—whatever color they are—a judge is not going to set low bail (or no bail).  If the accused gets out, there’s a chance they’ll repeat their crimes and rape or kill more people.  Also, if a gun or other violence is alleged to have been part of the crime, the accused may have high bail set.  None of us like criminals with guns out on the streets.

— The second purpose of setting bail is to make sure the accused returns to court.  If there is a history of warrants for the accused’s arrest because he failed to show up for previous court appearances anywhere in the criminal justice system . . . it’s not a tough choice for a judge.  If the accused doesn’t have close or long-term ties to the community, it may indicated he would flee if released on lower bail.  

— In Minnesota, the law says the judge must assume the alleged facts in the case are true—for the purpose of determining bail.  There is no presumed innocent until proven guilty standard when setting bail.

— What impact does all of the above have on people of color?  If you consider that a certain amount of racism is built into the system of who is arrested and charged with crimes—people of color have a much higher chance of getting involved in the criminal justice system.  Then, with the presumption that the alleged crime is true, people of color will be judged more harshly than others—simply because they end up in the criminal justice system more often.

— Many people of color are poor.  They don’t have long-term ownership of homes or even renting.  They don’t have a long history of a job.  They don’t have a bank account, credit cards, home loans, and all the other stuff that keeps most of us anchored to our neighborhoods.  (Even if we don’t want to be!)

— The upshot of all these factors means that people of color usually have higher bail set when they get into the criminal justice system.

Do you have an experience like this?  (You don’t have to tell all the details!!)

The post Criminal Justice, Bail, and People of Color appeared first on Colin T. Nelson.

Is this self defense or murder?

This situation really happened in Minneapolis and it’s troubled many people.  Let’s look at their concerns:

1.  The shooter is another example of “vigilantes.”  Untrained but armed citizens who “take the law into their own hands.”

2.  This is a Good Samaritan who tried to rescue a victim and stop the attacker.  He provided a public service, and when the attacker turned on him the rescuer acted in self-defense.

As a criminal lawyer myself, clearly the rescuer is within his rights to help the victim.  Also to try and recover the stolen purse.  To even chase the attacker.  He was also licensed to carry a gun.  But once the attacker turned and ran away, the rescuer doesn’t have a duty to chase him.  What about self-defense?

But he did choose to run after the attacker.

Under the law, this is considered a separate incident from the original crime.  At this point, if the rescuer uses force against the attacker, the rescuer may be committing the crime of assault.  Because the original crime was not directed at the rescuer.  Strange as it may sound, if the attacker feels threatened by the rescuer, he has a right to defend himself against the rescuer!

In Minnesota, the right of self-defense is defined as:

Taking of the life of another is authorized when necessary in resisting or preventing an offense in which the actor reasonably believes exposes the actor to great bodily harm or death to himself.

In the real case we have only the rescuer’s version since the attacker died from the gunshot.  It’s possible that either man acted in self-defense.  The rescuer could be charged with some level of homicide, although the prosecuting attorney has said he will not do so.

One concern that I have is the “vigilante” aspect of this incident.  For all I know, the rescuer acted as a Good Samaritan and only when he was threatened with death himself, reluctantly pulled out his own gun and shot the attacker dead.  But what if his intention from the start was to act as law enforcement, knowing he was armed and ready to shoot at the smallest reason?

As a society, we license law enforcement to use force—only after rigorous training and education about weapons and violent situations.  Most of us, even if we’re licensed to carry a weapon, lack similar training and may act in a rash, wrong, and deadly way.

What do you think?

The post Self Defense or Murder?? appeared first on Colin T. Nelson.

Most people assume that a jury will find the accused guilty or innocent (not guilty).  Or that a decision of not guilty means they didn’t do it.  The media often has the same misunderstanding and uses the word “innocent.”  People think the prosecutor presents evidence of guilt and the defense presents evidence of innocence.  Wrong.

There are no jury trials in America today that have anything to do with innocence.  That’s because of three reasons:

1.  The accused is already presumed innocent during the entire jury trial.  No matter what the prosecutor says or how bad the evidence against the accused looks, he is presumed (automatically) innocent—unless the jury finds him guilty at the end of the trial.

2.  The 5th Amendment to the Constitution guarantees that an accused may remain silent during a jury trial and can’t be forced to testify.  He may offer evidence to show the jury he’s not guilty, but he doesn’t have to prove that he’s innocent.

3.  Since the government has accused a citizen with a crime and has the power, the government is required to prove guilt.  They have to prove it beyond a reasonable doubt.  They must also convince all twelve jurors.  If the government fails, the jury is instructed to find the accused Not Guilty.

It doesn’t mean the accused is innocent.  Instead, it means the government failed to prove their case.

There are only two verdict forms given in a jury trial: Guilty and Not Guilty.  There’s no verdict of Innocent.

The post Jury Trials Are Not About Innocence appeared first on Colin T. Nelson.

Of course, in any lawyer/client relationship the people involved will determine who makes the decisions.  However, in criminal cases there are two main decisions that only the client can make—

1.  The decision to plead guilty or to demand a trial.  Not only is this legally and ethically correct, but it makes common sense also: only the defendant knows for certain if he committed the crime or not.  Therefore, he should be the one to make the decision to plead guilty.

Stemming from this, the client also has the decision to authorize his lawyer to negotiate with the prosecutor for the possibility of settling the case with a plea of guilty to some less serious offense.  It’s known as “plea bargaining” and, at the end of any negotiations, once again, it’s the decision of the defendant to plead guilty to the less serious charge or to reject the offer and go to trial.

2.  The defendant also makes the decision, if he wants a trial, that it be heard by a jury or by a judge without a jury.  This choice comes from the Bill of Rights in the Constitution that gives an accused the right to “a jury of his peers.”  Therefore, the defendant makes this decision.

In my many years of representing defendants, I always give them these decisions.  Often, a client will ask me if they should plead guilty or not—requiring me to make the decision.  I’ve never done that.  I always force them to confront the case and make the decision.  After all, they know if they’re guilty or not—I never know for sure.

When it comes to a jury or a judge for trial, I can offer a lot of advice to a defendant.  For instance, several years ago, I represented a young man who had been charged with first degree murder and transferred to adult court.  He was facing a life sentence without parole—he’d never get out of prison before he died.  He was the accomplice in a brutal, senseless execution of two people who were robbed for money.

When he asked me about a jury or a judge, I suggested that he consider going with a judge.  I was worried that a jury would be so offended by the facts of the case (even though my client was not the shooter) they would react by convicting him rather than weighing the evidence of his minor role in the murders.  A judge who had heard dozens of horrible cases like this one, might be more willing to look deeper at the legal issues involved.

My client agreed, he waived a jury, and we tried the case before a judge.

The judge found the young man guilty but of a reduced degree of homicide.  He still had to go to prison but only for about eight years.  In that case, the defendant’s decision worked to his benefit.

On the other hand, if a defendant tells me he did the crime but still wants a trial, I always suggest a jury—there’s a small chance the jury might feel sorry for the accused and give him a break.

The post Who Decides–Client or Lawyer? appeared first on Colin T. Nelson.